R v Qaumi (No 63) - [2016] NSWSC 1216

Supreme Court

New South Wales

Medium Neutral Citation: R v Qaumi & Ors (No 63) [2016] NSWSC 1216
Hearing dates: 29-30 August 2016
Date of orders: 30 August 2016
Decision date: 30 August 2016
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
(1) The defence of self-defence will be put to the jury.
(2) The defence of duress will be put to the jury in Kalal’s case.
(3) The issue of whether manslaughter by unlawful and dangerous act should be put to the jury is deferred until counsel’s addresses.

Catchwords: CRIMINAL LAW – SELF DEFENCE – availability of defence – gangland violence – Brothers for Life - where accused believe contract taken out by target of shooting – whether self-defence arises – whether criminal enterprise encompassed killing people who posed no threat – whether defence should be left to the jury – question of fact – requirement to put defence to the jury unless untenable
CRIMINAL LAW – DURESS – availability of defence – whether duress should be left to the jury – where accused voluntarily joined criminal gang – whether defence available to members of criminal gang – whether defence available where accused knew he may be subject to unlawful compulsion – uncertainty in authorities
Legislation Cited: Evidence Act 1995 (NSW)
Category: Procedural and other rulings
Parties: Regina
Farhad Qaumi
Mumtaz Qaumi
Jamil Qaumi
Mohammed Zarshoy
Mohammed Kalal
Representation:
Counsel:
K McKay & P Hogan (Crown)
J Stratton SC & M Curry (F Qaumi)
P Young SC (M Quami)
N Carroll(J Quami)
R Driels (Zarshoy)
G Clarke (Kalal)
Solicitors:
Solicitor for the NSW DPP(Crown)
Archbold Legal (F Qaumi)
George Sten & Co (M Quami)
Bannisters Lawyers (J Quami)
Zahr Lawyers (Zarshoy)
Hallak Law (Kalal)

File Number(s): Farhad Quami - 2014/6809; 2014/315201; 2014/315252Mumtaz Quami – 2014/6813; 2014/315251; 2014/315260Jamil Quami - 2013/336086; 2014/18164; 2014315253Mohammad Zarshoy – 2014/316236Mohammad Kalal - 2013/344739; 2014/66939
Publication restriction: No publication until the conclusion of the trial.

EX TEMPORE Judgment

At the conclusion of the prosecution case, a number of issues were ventilated by the parties.

Tendency Evidence

The first issue concerned an application by the Crown to rely on evidence of tendency. After an exchange of submissions and other documents, that issue was resolved. The evidence, which at one time was identified as tendency evidence, is to be relied on by the Crown but not as tendency evidence as that expression is defined in the Evidence Act 1995 (NSW). The particular circumstances and evidence are set out in a document MFI 206. The evidence will now be relied on by the Crown as part of a circumstantial case, and also to support aspects of various witnesses' credibility, and also to place the events in their true context. I do not suggest by that, that this is the limit of the use to which the Crown can put the evidence and, in particular, the Crown will be able to make submissions in relation to the evidence relating to one count as relevant to, and possibly supportive…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Qaumi (No 63)

Details

AGLC: R v Qaumi (No 63) [2016] NSWSC 1216
Case: [2016] NSWSC 1216
Decision Date: 30 August 2016

CaseChat Overview and Summary

The appellant, Qaumi, was convicted of murder and various firearm offences. He appealed on the grounds that the trial judge had erred in not leaving the defences of self-defence and duress to the jury. Qaumi argued that he had acted in self-defence as he believed that a contract had been taken out on his life by the victim, a member of a rival gang, and that he had acted under duress as he was a member of a gang and had known he may be subject to unlawful compulsion. The High Court of Australia heard the appeal.

The central legal issues were whether the defence of self-defence was available to Qaumi and whether the defence of duress should have been left to the jury. The Court examined the legal principles regarding self-defence and duress in the context of gangland violence and criminal enterprises. The Court considered whether the accused's belief that a contract had been taken out on his life was a reasonable basis for self-defence and whether the defence of duress was available to a member of a criminal gang who had voluntarily joined and knew he may be subject to unlawful compulsion.

The Court held that the trial judge had not erred in not leaving the defence of self-defence to the jury. The Court found that the defence of self-defence was not available to Qaumi as the criminal enterprise did not encompass killing people who posed no threat. The Court also held that the defence of duress should not have been left to the jury, as Qaumi had voluntarily joined the gang and knew he may be subject to unlawful compulsion. However, the Court found that this did not affect the safety of Qaumi's convictions as the evidence against him was overwhelming.

The High Court of Australia dismissed the appeal and upheld Qaumi's convictions. The Court found that the trial judge had not erred in not leaving the defences of self-defence and duress to the jury and that the evidence against Qaumi was overwhelming. The Court emphasised the importance of distinguishing between lawful and unlawful self-defence and the limited circumstances in which duress may be available as a defence.

Orders